The right to waive our rights
A Times EditorialPublished March 24, 2005
Everyone knows that, upon arrest, you have the right to remain silent but can choose to ignore that right and sing like a canary. Police cannot search your home without a warrant, unless they have your permission. The point is, constitutional rights are ours to either exercise or waive. It is up to us.
But that is not how Gov. Jeb Bush sees it. He wants the Legislature to pass a law making it illegal for any Floridian to waive the cap on attorney fees that was put into the state Constitution by initiative in November. Amendment 3 passed by more than 60 percent and limited the share of damages that could go to attorneys in a medical malpractice case. Fees were capped at 30 percent of the first $250,000 of an award and 10 percent on each additional dollar.
The amendment was part of the battle between doctors and lawyers, with each side using the state Constitution as a pawn. The lawyers were able to pass two provisions that hurt doctors - one that barred doctors from practicing after three medical malpractice judgments and the other that forced open the reporting of medical errors. And the fee cap was designed to handicap malpractice suits.
Attorneys say they will stop doing medical malpractice cases if the return does not cover the risk of bringing these expensive and complicated suits to trial. Which means the implementation of Amendment 3 won't hurt lawyers as much as it will injured patients who can't find an attorney to take their cases. Luckily, we all have the right - at least so far - to waive our rights, meaning the old fee schedules can remain in place if the client agrees.
Lawyers in Florida who take cases on a contingency are already limited in what they may charge under the rules of the profession. Under the current schedule, attorneys can receive no more than 40 percent of the first $1-million in recovery, 30 percent of any award between $1-million and $2-million, and 20 percent thereafter. Every client is also free to negotiate a better deal.
But the governor wants to close off the option of medical malpractice victims to pay an attorney beyond the restrictive constitutional cap. Both houses of the Legislature have bills to accomplish this, SB 2124 and HB 1067, and both would make it unduly difficult for average people to get through the courthouse door.